An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
“Whenever (the President) wishes to depart from the terms of a previous executive order,” he may do so because “an executive order cannot limit a President.” And he doesn’t have to change the executive order, or give notice that he’s violating it, because by “depart(ing) from the executive order,” the President “has instead modified or waived it.”
So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.
That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.
Here’s number two.
The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
Yes, that’s right. The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.
Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.” Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.
The question “whether an action is a lawful exercise of the President’s authority under Article II,” is to be determined by the President’s minions, “exercising his constitutional authority under Article II.”
It really makes you wonder, who are these people? They have got to be smart people to get there. How can people who are so smart be so misguided?
And then, it gets worse. Remember point three.
The Department of Justice is bound by the President’s legal determinations.
Let that sink in a minute.
The Department of Justice is bound by the President’s legal determinations.
We are a nation of laws, not of men. This nation was founded in rejection of the royalist principles that “l’etat c’est moi” and “The King can do no wrong.”
Our Attorney General swears an oath to defend the Constitution and the laws of the United States; we are not some banana republic in which the officials all have to kowtow to the “supreme leader.” Imagine a general counsel to a major U.S. corporation telling his board of directors, “in this company the counsel’s office is bound by the CEO’s legal determinations.”
The board ought to throw that lawyer out – it’s malpractice, probably even unethical.
Wherever you are, if you are watching this, do me a favor. The next time you are in Washington, D.C., take a taxi some evening to the Department of Justice. Stand outside, and look up at that building shining against the starry night. Look at the sign outside- “The United States Department of Justice.”
